MANSOOR ALI Vs. LEGAL REPRESENTATIVES OF LATE

JUDGEMENT

(1.) THE facts giving rise to this appeal briefly stated are that the plaintiff's Mansoor Ali and others filed a suit against the defendant Allah Bux for possession of the property described in para No. 2 of the plaint and for damages alleging that this property was a part of a larger property described in para 1 of the plaint which at one time, belonged to one Smt. Rahniat Bai and she created a Wakf of the property described in para 1 of the plaint in favour of Daudi Boharas, Nathdwara for their masjid and madrasa, etc., by a registered document dated 1 -8 -1953 and has given them possession over it. Their case further was that thereafter on 7 -8 -1953, Smt. Rahmat Bai took two shops and tahkhana below them on rent from the Wakf at Rs. 5/ - p.m. by a rent note of that date. Term No. 11 of the said rent note provided for that the lease would be for a term of 30 years and if she expired before the expiration of this term, her heirs and successors would not be entitled to retain the possession of the rented apartments. The plaintiffs further alleged that Smt. Rahmat Bai died on 6.11.69 leaving no heirs but the defendant Allah Bux entered into the said rented apartments without any authority. The case of the plaintiffs further was that apart from these rented apartments, Allah Bux took over possession of some other apartments of the property described in para 1 of the plaint, the details of which have been given in para 4 thereof, without any authority. The plaintiffs alleged that even if Allah Bux is taken to be a successor of Smt. Rahmat Bai, which they do not admit, he was not entitled to occupy the rented apartments after her death nor could he take possession of any other part of the property without the permission of the wakf. The plaintiffs went on to allege that they had obtained permission from the Board of Muslim Wakfs to file the present suit against the defendent Under Section 55(2) of the Wakfs Act as they were appointed trustees under the wakf deed dated 1.8.53. Thus the plaintiffs' claimed possession of the property in dispute and a sum of Rs. 1,440 as damages and also asked for future damages @Rs. 60/ - p.m.

(2.) THE defendant contested the suit. He pleaded inter alia, that Smt. Rahmat Bai had executed wakf of her property in question vide registered deed dated 29.12.46 in favour of Anjuman Talemul Islam, Udiapur (here in after called 'Anjuman') and since then it was in possession of the Anjuman and Smt. Rahmat Bai had taken the shops on rent from the Anjunian by rent note dated 30 -12 -46. His case further was that in view of this earlier wakf, later wakf dated 1 -8 -1953 alleged by the plaintiffs, if held proved was invalid as according to the Mohammedan law, a property once given in wakf, cannot be made the subject matter of another wakf. He further alleged that Smt. Rahmat Bai was his Khala and he being her nearest relation after her death, was legitimate successor. He also pleaded that after the death of Smt. Rahmat Bai, he took the shops, tahkhana and the apartments constructed in the stair case wrongly described as a bath room by the plaintiffs on rent from Anjuman on 1 -3 -1970 on a monthly rent of Rs. 10/ - and was thus in lawful possession as a tenant. He also contended that he was using the apartment on the fourth floor with the permission of the Anjuman. According to him, the plaintiffs were not entitled to evict or ask for possession of the suit premises as they had no right to the property. One of the objections raised by him was that the Anjuman was a necessary party in the suit.

(3.) AFTER taking the evidence of the parties and hearing them, the learned Addl. Civil Judge decreed the plaintiffs' suit for possession and also awarded a sum of Rs. 960/ - as damages upto the date of the suit and future damages @ Rs. 30/ - p.m. The learned Addl. Civil Judge found, under issues No. 1 to 3 that the possession of the property in question was that of the trustees of the Daudi Bohra Samaj under the wakf deed dated 1 -8 -1953 Ex. 1, that the defendant had trespassed into the disputed apartments on the death of Smt. Rahmat Bai, that even if the earlier wakf had been made in favour of the Anjuman, the plaintiffs had acquired title over the property by adverse possession since 1 -8 -1953 as the wakf in favour of the plaintiffs had been recognised by the Wakf Board vide the Rajasthan Gezatte dated 1964 and the Anjuman did not appear to have filed any objections. He was thus of the opinion that the plaintiffs were entitled to file a suit against the defendant, who was alleged to be the trespasser.